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[2015] ZAFSHC 72
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Coetzer v Mabaso (1825/2013) [2015] ZAFSHC 72 (20 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: 1825/2013
In the matter
between
CHARL
COETZER
…..............................................................................
Applicant
and
MZONDASE
INGRID MABASO
….....................................................
Respondent
JUDGMENT
BY:
MOENG,
AJ
DELIVERED
ON:
20
March 2015
[1] This is an
application for leave to appeal to the Full Bench of this division
against the whole of my judgment delivered on
28 November 2014. The
grounds of appeal are contained in the notice of appeal. I do not
deem it necessary to repeat same. I ordered
that heads of argument be
filed and that the parties appear before me if they so wished. I was
favoured with heads and I am indebted
to both parties.
[2] On the strength
of the foregoing grounds of appeal, applicants submit that in the
circumstances there is a reasonable prospect
of success and that
another Court may come to a different conclusion. The application is
opposed. The respondent contends that
none of the grounds of appeal
have any substance and that there is no reasonable likelihood that
another Court will differ from
me on the conclusions I reached on the
issues raised.
[3]
It
is trite that leave to appeal should not be granted unless the
applicant satisfied the trial court concerned that he has a
reasonable
prospect of success on appeal. The issue at hand relates
to whether I correctly dismissed the applicant’s plea of
prescription.
I find what Centlivres JA stated in
Rex
v Baloi
1949
(1)
SA
523
AD on p. 524 -525
,
apposite:
“
We
are aware that this Court is able to apply the proper test with
greater ease than the trial Judge. For the trial Judge must,
in the
nature of things, find it somewhat difficult to look at the matter
from a purely objective standpoint; he has a natural
reluctance to
say that his own judgment is so indubitably correct that the Judges
of appeal will concur therein.”
[4]
I primarily made adverse credibility findings against the applicant
and his witness, Ms. Skosana. I was faced with mutually
irreconcilable accounts relating to the issues and I preferred the
respondent’s version. Having had regard to
Leketi
v Tladi NO and others
[2010]
3
All
SA
519
(SCA),
I considered the adverse operation of section
12(3)
of
the Prescription Act. I concluded that the section is not dependent
upon a creditor’s subjective evaluation of the presence
or
absence of knowledge or minimum facts sufficient for the institution
of a claim but the deemed knowledge imputed to the creditor
required
the application of an objective standard rather than a subjective
one. In order to determine whether the respondent exercised
“reasonable care,” her conduct must have been tested by
reference to the steps which a reasonable person in her position
would have taken. Though satisfied with my credibility findings, I am
satisfied that another Court, constituted differently may
reach a
different conclusion on the issues.
[5] I will therefore
make the following order:
1. Leave to appeal
to the Full Bench of this Division is granted.
2. Costs will be
costs in the appeal.
L.B.J. MOENG, AJ
On behalf of the
applicant: Adv. J.F Grobler
Instructed by:
Lovius Block
BLOEMFONTEIN
On behalf of the
respondent: Mr. K.M Rontgen
Instructed by:
McIntyre & Van Der Post
BLOEMFONTEIN